The Legal Way to Seize Guns From Dangerous People

President Donald Trump shocked the gun-rights world when he urged authorities in the wake of the recent school massacre in Florida to “take the guns first, go through due process second,” and the White House quickly hastened to explain away the off-the-cuff remarks.

In the wake of the Parkland shooting, before which family, peers and teachers repeatedly warned authorities that the alleged killer Nikolas Cruz seemed to be gearing up for violence, the idea that law enforcement should be able to keep firearms out of the hands of violent or mentally unstable people has widespread appeal. But to Second Amendment advocates, it calls up images of federal stormtroopers barging into private homes to seize Americans’ guns.

Story Continued Below

In fact, some states do have laws that allow disarming legal gun owners who pose a risk to themselves or others. But they bear more resemblance to long-established speedy legal proceedings like search warrants or emergency domestic violencerestraining orders. While gun violence restraining orders can indeed be issued before a person believed to pose a risk can appear in court, the process only proceeds with the approval of a judge, and petitioners must present concrete evidence of imminent danger before any guns get seized.

“In individual cases, these orders could make all the difference,” said Garen Wintemute, a University of California, Davis professor who is currently evaluating the effectiveness of his state’s program. “The weapon matters. If there’s a high-risk situation, taking firearms out of the equation can change the outcome.”

Only five states — Connecticut, Indiana, California, Oregon and Washington — currently have laws allowing civil gun seizure orders. But interest in GVROs, sometimes known as extreme risk protection orders, or more generically as red flag laws, has spiked since the Parkland shooting. According to the Giffords Law Center to Prevent Gun Violence, legislators in 26 states have introduced or will soon introduce red flag laws, including Maryland and New York, where the state Assembly recently passed such a law. In Rhode Island, the state’s Democratic governor took the unprecedented step of enacting gun violence restraining orders by executive order.

The National Rifle Association has vehemently opposed policies like gun violence restraining orders. In bulletins to members, the gun group has urged them to contact state elected officials and vote against these laws because “they provide a mechanism for an individual to lose the right to keep and bear arms with no due process of law.”

Despite the gun group’s stance, support is also flowering in corners of the political world normally opposed to new firearms restrictions. A version of a GVRO is part of the package of gun bills just passed by both chambers of Florida’s Legislature, and will become law as soon as Governor Rick Scott signs the bill. The idea has the backing of the state’s junior senator, Marco Rubio, who went to great lengths to earn his A rating from the NRA. Rick Snyder, the Republican governor of Michigan, is open to a “red flag” program in his state. National Review writer David French is calling GVROs a gun violence intervention that conservatives can get behind. The federal Gun Violence Restraining Order Act, which would provide grants to states that create GVRO programs, picked up two Republican co-sponsors, Representatives Brian Fitzpatrick of Pennsylvania and Ileana Ros-Lehtinen of Florida.

“The country has been deeply shaken by the fact that so many warning signs failed to stop a young man from killing 17 students and teachers in Parkland, Florida. But in many states, including Florida, the tools available to law enforcement are very limited even when they are aware of red flags,” said Representative Don Beyer, one of the co-sponsors of the House bill. “The Gun Violence Restraining Order Act could go a long way towards solving this problem.”

Senators Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.), also introduced a similar bipartisan “red flag” bill in the Senate on March 8. At a news conference introducing the legislation, Graham, an AR-15 owner himself, said the bill shouldn’t scare lawful gun owners mindful of their Second Amendment rights: It would apply only to those who do things like torture animals or threaten family members.

But passing additional GVROs laws would be just a first step. While research on the laws is sparse, available data show that local police departments have been slow to employ the orders, possibly due to a simple shortage of awareness. In late February, Indiana’s Republican attorney general, Curtis Hill Jr. sent out a news release reminding police and prosecutors that the state’s law exists. He said in an NPR interview, “It’s not a law that is widely known or utilized.”

In other cases, courts have rearmed volatile gun owners after law enforcement departments failed to complete all the required legal steps.

As GVROs gain traction in legislative chambers, it will be vital for state and local governments to have a model for successfully implementing the orders.

In San Diego, the City Attorney’s Office thinks it has found that formula.

***

Here’s how gun violence restraining orders typically work: police or family members, fearing that a gun owner has become acutely dangerous, file a seizure warrant with a judge. In an initial hearing, without the gun owner present, the judge decides if the firearms should be confiscated. If the court approves the seizure, officers are dispatched to collect the weapons, and the judge schedules a second hearing in two or three weeks, at which time he or she will decide whether the guns should be returned or remain in law enforcement custody for a given period of time, usually a year.

The gun owner can appeal the order, though one study suggests that few do. An analysis of data from one Indiana county found that 72 percent of gun owners whose cases weren’t dismissed failed to show up for court dates to contest the seizures.

Farmington, a Connecticut town of 25,000 people outside Hartford,served three seizure warrants over the course of 2016 and 2017, according to police Lieutenant Patrick Buckley, who calls the orders a uniquely valuable tool for reducing violence. To explain how police can use the warrants to not just investigate but prevent violence, Buckley described a hypothetical scenario, in which a man brandishes a revolver and vows to use it on co-workers.

With a common criminal search warrant, “we could get a warrant to seize the revolver as evidence of a crime,” since threatening violence is a misdemeanor. Buckley continues: “But say the suspect owns 10 other guns, they’re pissed off, and they take one of those other weapons to shoot the person who reported the threat.” If the police instead had a risk warrant, they could seize all the man’s firearms, not just those directly connected to a particular criminal offense.

Though risk warrants and similar laws haven’t been extensively studied, one attempt to evaluate the effectiveness of Connecticut’s program suggested it may reduce suicide. A team of psychiatrists led by Professor Jeffrey Swanson published a paper last year estimating that for every 10 to 20 gun seizures, one suicide was prevented.

If they’re not diligent, even authorities experienced with the law can make simple mistakes that allow people subject to risk warrants to retain or recover their weapons. In 2013, Farmington police took 16 guns from the manager of a metal shop who responded to a negative comment about his unit’s performance during a meeting by saying he would return with a .40-caliber handgun and “take these [expletive] out.” The court scheduled a follow-up hearing more than 14 days after the warrant was issued, however, too late according to the law. As a result, a judge ruled police had to return 13 of those weapons, only keeping weapons like an unregistered assault weapon that were illegal to possess in the first place.

***

It took a terrifying rampage not dissimilar to Parkland to get the largest state in the country to create its own civil gun seizure law. In 2014, a young man named Elliot Rodger committed a string of murders in the Isla Vista area of Santa Barbara, California. Rodger’s parents had warned police that he was disturbed, wanted to hurt others and had guns, but authorities said they couldn’t do anything until the young man had actually committed a crime. In the wake of his killing spree, Rodger became the poster boy for the law allowing preventative gun seizures from legal gun owners.

California’s gun violence restraining order law went into effect in 2016. That year, police and family members of gun owners successfully filed for 86 orders statewide. The number rose to 104 in 2017.

The city of San Diego wants to get even more aggressive about seizing guns with these orders. It has launched an initiative to ensure that civil gun seizures orders are issued as frequently as possible and appropriate, and are done so correctly.

In the fall of 2017, the San Diego City Attorney’s Office devoted a senior prosecutor, Deputy City Attorney Ryan Scott, to stopping dangerous individuals from getting or keeping guns by making intensive use of GVROs. The office believes it is the first in the state to dedicate resources in this way, according to spokeswoman Cheryl Nolan. Over the span of three months, attorneys have filed 10 orders against local gun owners, including people who committed domestic violence, those suffering from mental illness and dementia, and those possibly at risk for suicide.

Under the program, police now refer 911 calls about armed and threatening individuals to the city attorney’s office for follow-up. If the situation warrants a GVRO, Scott files the order, which can be processed faster than a criminal charge.

The city issued its first GVRO late last year, against a man named Shawn Michael Erler. On the night of December 11, Erler was firing a .380-caliber pistol in a residential neighborhood while under the influence of both prescription drugs and alcohol; his blood alcohol level was three times the level at which someone is considered too impaired to drive. When police arrived at his home, Erler was still shooting into a neighbor’s yard. Days after his arrest, he was hit with a GVRO, and a judge later banned him from possessing guns for a year.

The office has removed firearms from a range of at-risk individuals. Scott has seized weapons from a Marine suffering from severe paranoia, an 81-year-old man who threatened to shoot his wife, and a father who said he would kill his family if his wife left him.

Most of the weapons seized have been handguns, though the senior citizen who wanted to kill his spouse had two high-capacity magazines, and a man who said he’d kill his fiancee and her ex-boyfriend surrendered an AR-15.

For some people subjected to a red flag order, the experience can be a wake-up call.

Ben Bertiger, 24, was forced to give up his firearms after he was placed under a GVRO during the fall of 2016. At the time, he was a student at the University of California, Santa Barbara. In an interview, Bertiger described himself as a “hard-core libertarian” and “gun nut” who had had two hobbies: provoking police and hoarding weapons.

“If the police had a DUI checkpoint, I’d refuse to let them check me,” he said. “I’d follow them if they tried to arrest someone.” Privately, he amassed an arsenal. “I’d lie to people about how much money I spent on guns. I’d have to make massive amounts of money to get guns, and I didn’t care how I made the money. It was a pretty bad addiction.”

According to incident reports provided by UCSB police, in January 2013, Bertiger was caught bringing ammunition through security at Santa Barbara airport. In September 2015, someone called the force to report that Bertiger had posted a photo on Facebook of himself clad in body armor, an AR-15 on his lap, and pointing a handgun at the camera. The following July, he was spotted putting a rifle into the trunk of his car in an Isla Vista parking lot. Chatting online in October 2016, he seemed to advocate for the violent overthrow of the U.S. government, prompting another worried phone call to the campus police.

In all, Bertiger was reported to campus police seven times from 2013 to 2016, all for either gun-related incidents or confrontations with police. None of the incidents resulted in criminal charges, so he remained legally allowed to own guns.

One night in November 2016, Bertiger was in his apartment, playing with a custom Beretta M9 pistol he’d just purchased. He fell asleep with the weapon on his chest. The pistol slipped off and discharged, firing through his bedroom wall into a neighbor’s apartment.

When the county sheriff and UCSB police arrived, officers found Bertiger’s stockpile of guns, along with machining equipment for making custom parts. Bertiger says the police took the five or six weapons he had in the apartment, though he owned others stored elsewhere, which he transferred to a friend out of state after he was released on his own recognizance. He was charged with felony negligent discharge of a firearm.

After Bertiger’s release, UCSB police filed for a gun violence restraining order. It ensured that he could not acquire more weapons, even if the criminal charge was downgraded to a misdemeanor.

Bertiger spent most of July 2016 in jail, then moved to Los Angeles, where he is serving out his probation. He said he is still ardently pro-gun, but is ultimately glad the police intervened.

“There were definitely things that were destructive about my behavior with guns,” Bertiger says. “Maybe it’s good to step back. I want to keep my head down, complete probation and find other hobbies.”